Effective as of May 22, 2018
PLEASE NOTE THE ARBITRATION PROVISION SET FORTH BELOW, REQUIRING YOU TO ARBITRATE ANY CLAIMS YOU MAY HAVE AGAINST E.L.F. COSMETICS, INC. AND ITS AFFILIATES ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
License Grant and Restrictions
The foregoing license is limited. You therefore may not
- reverse engineer, decompile, disassemble, translate, or create any derivative work of the Site (or any part thereof);
- access, link to, or use any source code from the Site (or any part thereof); or
- erase or remove any proprietary or intellectual property notice contained in or on the Site (or any part thereof).
Limitations on Use
The site is meant for adults. If you are a minor (as defined by the laws of the jurisdiction in which you reside), you must have obtained the consent of your parent or legal guardian to use the Site and agree to these Terms of Service.
We make no representations that the Site is appropriate or available for use in locations outside of the United States or the United Kingdom, as applicable. If you access the Site from outside of the United States or the United Kingdom, as applicable, you do so voluntarily and at your own risk, and you are responsible for compliance with applicable law. Please refer to the Shipping Info page on the Site for more information regarding availability of shipments to locations outside of the United States or the United Kingdom, as applicable, and any terms and conditions that apply to such shipments.
Your Account Information
If you choose to register on the Site, you will set up an account by submitting your contact information and selecting a password (together, your "Account Information"). If you fail to sign into the Site using your Account Information for a period of one year, we reserve the right to deactivate your account, without notice or liability to you. The Site is limited to one (1) active account per person. We reserve the right to deactivate multiple accounts established by the same person. It is your responsibility to maintain the confidentiality of your Account Information, to safeguard your username and password, and you are responsible for all use of the Site accessed through it. You agree to immediately notify us of any unauthorized use of your account or Account Information or any other actual or suspected breach of Site security.
Use of the Site
- use the Site in a commercial manner, including by distributing, transmitting or publishing the Site or any of its content;
- interfere with others' use of the Site;
- impersonate another person while using the Site, including, but not limited to, an official or representative of e.l.f. Cosmetics;
- impair the Site's operation or interfere with or disrupt the servers or networks connected to it;
- interfere with our intellectual property rights;
- frame or otherwise co-brand the Site or any of its content;
- upload, post, e-mail or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- upload, post, e-mail or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- upload, post, e-mail or otherwise transmit any content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or network; or
- use the Site for any illegal purpose.
We reserve the right in our sole discretion to terminate or restrict your use of the Site, without notice, for any or no reason, and without liability to you or any third party. In such event, we may inform your Internet service provider of your activities and take appropriate legal action.
By using the Site, you consent to receiving electronic communications and notices from us. You agree that any notice, agreement, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. In certain jurisdictions, we may ask customers for prior express written consent to send certain electronic communications. If you provide your consent, you understand that you can opt out at any time by following the procedures set forth in the Privacy Notice. If your email address changes, it is your responsibility to update your information promptly by accessing your accounting information on the Site or contacting us directly.
Due to the low-cost nature of our products, we are unable to offer any returns or exchanges for products purchased through the Site.
The contents of the Site, including all software, design, text, graphics, images, photographs, illustrations, audio and video material, artwork, databases, user interfaces, visual interfaces, sounds, artwork, presentations in any format, computer code (including html code), products, information, and documentation, as well as the design, structure, selection, coordination, expression, ”look and feel” and arrangement of the Site (collectively, ”Material”) unless otherwise indicated, are owned, controlled, and licensed by e.l.f. Cosmetics or its licensors. The Site and Material is Copyright ©2017 e.l.f. Cosmetics, Inc. and/or its licensors, ALL RIGHTS RESERVED.
Any rights granted hereby are expressly licensed. e.l.f. Cosmetics does not grant any implied right to you or any other person and does not transfer or assign any ownership or intellectual property interest or title in or to the Site (or any part thereof) to you or anyone else. Accordingly, your unauthorized use of the Site (including any Material) may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes.
You may not alter, delete or conceal any copyright or other notices contained on the Site or Material, including notices on any audio/visual material you access, download, transmit, display, print or reproduce from the Site.
You may not, nor will you allow any third party (whether or not for your benefit), to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third-party website), or otherwise use, any Material without the express prior written consent of e.l.f. Cosmetics or its owner if e.l.f. Cosmetics is not the owner. e.l.f. Cosmetics and all other names, logos, and icons identifying e.l.f. Cosmetics and its products and services are proprietary trademarks of e.l.f. Cosmetics (or its affiliates), and any use of such marks, including, without limitation, as domain names or account identifiers, without the express written permission of e.l.f. Cosmetics is strictly prohibited.
Other product and company names mentioned herein or on the Site may be the trademarks and/or service marks of their respective owners, who may or may not be affiliated with or sponsor or endorse us (and who may or may not be endorsed by us).
You may print a copy of the Material on your computer only for your own personal, non-commercial home use, provided that you do not remove any copyright, trademark or other proprietary notices from the Material. Any other use of the Material is strictly prohibited. The Site may also contain content that is owned by third parties. You may use such third-party content only as expressly authorized by the applicable owner.
Digital Millennium Copyright Act
We respect the intellectual property rights of others, and require that the people who use the Site and products do the same. We may terminate the privileges of users who are repeat infringers of intellectual property rights. If you are a copyright owner and believe that any content posted on the Site infringes upon your copyrights, please provide our designated copyright agent the following written information in accordance with the Digital Millennium Copyright Act (the “DMCA”):
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed;
- identification of the material that is claimed to be infringing and information reasonably sufficient to permit location of the material;
- information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
- a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our DMCA designated copyright agent for notice of claims of copyright infringement on the Site is our General Counsel, Scott K. Milsten, who can be reached as follows:e.l.f. Cosmetics, Inc.
570 10th Street
Oakland, CA 94607
Attn: Legal Department
Transactions & Pricing
All transactions made through the Site are subject to our acceptance, which is in our sole discretion. Without limitation, this means that we may refuse to accept or may cancel any reservation or transaction, whether or not the reservation or transaction has been confirmed, for any or no reason, in our sole discretion, and without liability to you or any third party.
All items purchased through the Site are made pursuant to a shipment contract. All shipments are made FCA, Shipping Point, Incoterms®2010 (freight prepaid and added to invoice). Risk of loss and title for your purchased items pass to you, and legal delivery is completed, upon our delivery of these items to the carrier for shipment to you at the Shipping Point. “Shipping Point” means the “shipped from” address on our sales or shipping documentation. “Freight prepaid and added to invoice” means that we pay the shipping charges and add such charges to your invoice.
When you purchase items through the Site, you agree and acknowledge that we will arrange for shipment of those items to you on your behalf as your agent and that you have authorized us to select the delivery service or carrier you indicated during the checkout process. As indicated above, shipping charges were invoiced to you when you completed your purchase.
For information regarding availability of shipments to locations outside of the United States or the United Kingdom, as applicable, and any additional terms and conditions may apply, please refer to the Shipping Info page on the Site. If any items are shipped to any location outside of the United States or the United Kingdom, as applicable, you agree and acknowledge that you will be the importer of record, and that you will be liable to pay all customs duties, taxes and similar charges, if any, imposed by the customs authorities for the import of the items to that location.
Please note that with respect to orders made through our non-US Site, all prices shown are inclusive of VAT (to the extent applicable) at the applicable local rates. For greater certainty, when you purchase items through the Site, you are liable to pay, to the extent applicable, all sales, VAT, goods and services, value-added or any similar taxes.
While we use our best efforts to maintain the accuracy and reliability of the Site, we do not warrant, guarantee or make any representations regarding the use, or the results of the use, of the Site or Materials in terms of availability, accuracy, reliability, currentness, completeness, functionality, intended purpose, or otherwise. e.l.f. Cosmetics also does not represent or warrant that the Site will always operate error-free, uninterrupted, or in a manner that will meet your requirements. While we have tried to accurately display the colors of products, the actual colors you see will depend on your monitor and may not be accurate.
We assume no responsibility or liability for errors or omissions on the Site or for problems with its operation. Your access and use of the Site are at your own risk. Without limiting the foregoing, the Site and its content are provided “as is” and “as available” without warranty of any kind, either express of implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement.
Applicable law in some locations, such as the State of New Jersey, does not allow the waiver of implied warranties set forth above, so this provision may not apply to you.
Limitation of Liability
Applicable law in some locations, such as the State of New Jersey, does not allow the limitation of liability of certain damages set forth above, so this limitation of liability may not apply to you.
Use of Information Submitted
You agree that we may use any comments, information or ideas contained in any communication you may send to us, without compensation, acknowledgement or payment to you, for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products and services and creating, modifying or improving the Site or other products or services.
All offers are valid while supplies last. e.l.f. Cosmetics reserves the right to substitute any product at its discretion and the right to limit quantities and discounts without notice. Not valid for bulk orders. Discounts and coupons are not valid for gift card purchases. Only one coupon code may be applied per order. Free or discounted shipping and handling offers are only valid for orders within the United States, Canada, or the United Kingdom, as applicable.
We reserve the right, in our sole discretion, to modify, suspend or discontinue any part of the Site at any time, without notice or liability to you or any third party. We also reserve the right, in our sole discretion, to impose limits on certain features and services.
Links to Other Sites
The Site may include links to third-party websites. We do not control and are not responsible for the content or privacy policies of any linked site, and the inclusion of any link on the Site does not imply our endorsement of it. e.l.f. Cosmetics expressly disclaims any responsibility for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third-party websites.
Representations and Warranties
You represent and warrant to e.l.f. Cosmetics that:
- if you are a resident of the U.S., you are at least thirteen (13) years old, or, if you are a minor, you have obtained the consent of your parent or legal guardian to use the Site;
- if you are a resident of the United Kingdom, you are at least age thirteen (13) years old, or, if you are a minor, you have obtained the consent of your parent or legal guardian to use the Site;
- if you are a resident of any other country or territory, you are of the applicable legal age to use the Site without consent of your parent or legal guardian;
- you will access and view the Site and the Materials for your personal, non-commercial use only;
- you will not use the Site or the Materials for any purpose or in any manner that violates any law or regulation or that infringes the rights of e.l.f. Cosmetics or any third party;
- any information or data provided to e.l.f. Cosmetics by you will not violate any law or regulation or infringe the rights of e.l.f. Cosmetics or any third party;
- all information that you provide to us in connection with the Site (e.g., name, e-mail address, and/or other information) is true and accurate; and
- you are authorized and able to fulfill and perform the obligations and meet the conditions of a user as specified herein.
Binding Arbitration AGREEMENT
As used in this section, “Arbitration Provisions” refers to the provisions under this section entitled “Binding Arbitration Agreement.”
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Informal Dispute Resolution. Either party asserting a dispute shall first try in good faith to resolve it by providing written notice as specified below to the other party describing the facts and circumstances (including any relevant documentation) and allowing the receiving party 30 days in which to respond. Both you and e.l.f. Cosmetics agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.
- How Arbitration Works. Either party may initiate arbitration, which shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (“AAA Rules”), as modified by these Arbitration Provisions. To file an arbitration demand and review the AAA Rules, you can go to the AAA’s website www.adr.org, or call the AAA at (800) 778-7879. In the event the AAA is unavailable or unwilling to hear the dispute, the parties shall agree to, or the court shall select, another arbitration provider. Unless you and e.l.f. Cosmetics agree otherwise, including to conduct of arbitration by telephone or videoconference, any arbitration hearing shall take place in the county of your residence (as determined by your billing address on file with e.l.f. Cosmetics). If you live outside the United States, any arbitration will take place in San Francisco, California. Unless the arbitrator finds some or all of your claims to be frivolous, without merit or otherwise non-reimbursable, e.l.f. Cosmetics will pay all filing, administrative, arbitrator and hearing costs up to the amount of $10,000. In determining whether an action is frivolous, the arbitrator may consider whether e.l.f. Cosmetics has offered you a full refund of the sum you paid for items you purchased from e.l.f. Cosmetics, or has otherwise offered full relief to you in relation to your individual claim). e.l.f. Cosmetics also waives any rights it may have to recover an award of attorneys’ fees and expenses against you.
- WAIVER OF RIGHT TO BRING CLASS ACTION AND REPRESENTATIVE CLAIMS. All arbitrations shall proceed on an individual basis. The arbitrator is empowered to resolve the dispute with the same remedies available in court, however, any relief must be individualized to you and shall not affect any other customer. You and e.l.f. Cosmetics also agree that each may bring claims against the other in arbitration only in your or their respective individual capacities and in so doing you and e.l.f. Cosmetics hereby waive the right to a trial by jury, to assert or participate in any class action lawsuit or class action arbitration, any private attorney general lawsuit or private attorney general arbitration, and any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or representative action must be brought in a court of proper jurisdiction and not in arbitration.
- Governing Law and Other Terms. These Arbitration Provisions are governed by, and interpreted, construed, and enforced in accordance with, the United States Federal Arbitration Act and other applicable federal law. To the extent state law applies to any aspect of these Arbitration Provisions, or to any disputes and claims that are covered by these Arbitration Provisions, the law of the state of your residence, as determined by your mailing address on file with e.l.f. Cosmetics, will govern. If you live outside of the United States, the law of the State of California will apply. We will provide notice of any material changes to these Arbitration Provisions, in which case you will have the right to opt out of these Arbitration Provisions within 90 days after such change. Except as set forth above regarding the class action waiver provision, if any portion of these Arbitration Provisions is deemed invalid or unenforceable, it will not invalidate the remaining portions of these Arbitration Provisions. Only the arbitrator is authorized to make determinations as to the scope, validity, or enforceability of these Arbitration Provisions, including whether any dispute falls within its scope. However, the parties agree that any issue concerning the validity of the class action/representative waiver above must be decided by a court, and an arbitrator does not have authority to consider the validity of the waiver.
- Intellectual Property Disputes. If you have in any manner violated or threatened to violate any of e.l.f. Cosmetics’ intellectual property rights, we may bring suit in any state or federal court in the State of California. You consent to exclusive jurisdiction and venue in these courts.